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October 06
The Myths of References
The importance of taking reasonable care.
Changes to the statutory holiday entitlement
An introduction…..
Importance of Risk Assessments
How a woman was awarded £30,000
Redundancy payments
The effect of the Age Regulation
Establishing a policy for whistleblowing
Full details of what a policy should contain.
Minimum Wage Increase
Reminder re increase in NMW in October
There are some major myths about references. The first is that “nobody has the right to a reference”. The second one is almost the exact opposite because many people believe they must provide any reference they are asked (and answer all of the questions too). And there’s another myth, that references are confidential and the person concerned has no right to see them. Find out where the truth actually lies in the full article. As usual, the truth lies somewhere between the extremes.
While it’s true that in most situations you can’t be compelled to give a reference for an ex-employee, there are some circumstances in which you should do so. For example, firms which are licensed to provide financial services are bound to supply references for ex-employees. And if an ex-employee had complained of discrimination (or helped another employee to complain) this could give grounds for a claim of victimisation, even though the person was no longer employed.
If you do provide a reference, you are under a duty to take reasonable care over it. The reference must be true, accurate and not misleading. Although it does not need to be full and comprehensive, any information that is missed must not have the effect of making it misleading.
In a recent court case, (Dike –v- Rickman) Mr Dike lost the chance of a new job after his ex-employer, Mr Rickman wrote the following:
"Mr Dike is a very difficult person to work with. We shall not be sorry to lose his services. We have received two complaints of sexual harassment from a secretary and an outside office cleaner. Mr Dike has been cautioned for both complaints which he denied. No further action resulted."
Although Mr Dike admitted that complaints had been made against him, he alleged the reference was misleading, inaccurate and negligent. Fortunately for the company, the High Court judge found that every statement made in the reference was true and that the reference as a whole was not misleading.
The case of Bartholomew v London Borough of Hackney was similar. Hackney Council suspended Mr Bartholomew for alleged financial irregularities and Mr Bartholomew then claimed race discrimination. Mr Bartholomew left under a voluntary severance arrangement where he withdrew his discrimination claim and the disciplinary action was halted.
Mr Bartholomew later was offered employment with Richmond Council but the offer was withdrawn when they received a reference from Hackney which stated he 'was suspended from work due to a charge of gross misconduct, and disciplinary action had commenced [which] lapsed automatically on his departure'.
The Court of Appeal ruled that the reference was true, accurate and fair when looked at in the whole and Mr Bartholomew lost his case.
Some employers have a policy of providing only a bare minimum reference (positions held with dates of employment) but it would be risky to give this information and conceal something serious.
The Data Protection Act has given ex-employees the right of access to references about them if their new employer keeps them on file. So if you ask for a reference it is best to make a statement such as “Please note that under the Data Protection Act, the employee may ask for a copy of any information held in his/her file, including this reference”. And if you are asked to provide a reference just be aware that it can’t be treated as confidential.
Of course, Picasso HR clients don’t have to worry about references because we will advise you on how to answer any type of reference request, as well as how to request a reference.
The Department of Trade and Industry (DTI) launched an initial consultation seeking views on proposals to extend the current statutory holiday entitlement to reflect the number of permanent bank and public holidays (there are 8 permanent bank and public holidays in Great Britain). Under the Working Time Regulations 1998, staff are entitled to four weeks' paid holiday each year. The Government proposes to increase that entitlement to 5.6 weeks, pro rata for part-timers. The statutory right to paid holiday will be subject to a maximum of 28 days' paid leave per year. The consultation sought views on the potential benefits and impacts of increasing the statutory annual leave entitlement from four weeks at present to 5.6 weeks (equivalent to 28 days leave for someone who works 5 days a week) and, on whether potential flexibilities would help business to manage the additional holiday entitlement. The consultation period closed in late September. Increasing the statutory holiday entitlement may have a grater impact on some businesses and sectors that have historically given less annual holiday to staff. To give time for businesses to adjust, the Government proposes to phase in the introduction of the additional entitlement, with the statutory entitlement increasing from 4 weeks to 4.8 weeks (equivalent to 24 days’ holiday for someone working five days a week) from 1st October 2007. The timing of the introduction of the remaining additional entitlement will be decided following this last consultation and subsequent views sought on how and when the remainder of the additional holiday entitlement should be introduced.
Windfall after Stair FallAberdeenshire Council has been ordered to pay social worker Morag Holtes £30,000 after she broke her arm in a fall at work. Mrs Holtes claimed that in 2003 she fell down a steep staircase at the Council offices in Stonehaven. The Council had failed to undertake a risk assessment of the steep and narrow stairs in the converted house. An ill-fitting carpet compounded the matter and Mrs Holtes caught her heel in a bulge in the carpet. Consultant engineer, Philip Glen, told the Court of Session in Edinburgh that the staircase did not meet the criteria for office use, although a health and safety officer said it was well lit and did have a handrail. Legal comment Over a third of all major injuries reported each year are caused as a result of a slip or trip (the single most common cause of injuries at work). The Health and Safety at Work etc Act 1974 (HSWA) requires employers to ensure the health and safety of all employees and anyone who may be affected by their work. This includes taking steps to control slip and trip risks. The Management of Health and Safety at Work Regulations 1999 build on HSWA and include duties on employers to assess risks (including slip and trip risks) and where necessary take action to safeguard health and safety. Finally, The Workplace (Health, Safety and Welfare) Regulations 1992 require floors to be suitable, in good condition and free from obstructions. People must be able to move around safely.
There are new rules for calculating the number of weeks' pay due . From 1 October 2006, when the Age Regulations come into force, the upper age limit on unfair dismissal and redundancy will be removed, as well as the lower age limit for redundancy pay. The redundancy payments will be made on the following basis: Up to the age of 21 - 0.5 week’s pay for each completed year of service 22 - 40 years of age - 1 week’s pay for each completed year of service 41+ years of age - 1.5 weeks’ pay for each completed year of service For statutory redundancy pay “a week’s pay” is limited. The current limit is £290 per week. This is reviewed each April.
Most people will have heard of 'whistleblowing' from recent high-profile cases reported in the media e.g. Sherron Watkins of Enron. One helpful definition being: 'raising concerns about misconduct within an organisation or within an independent structure associated with it' (Nolan Committee on Standards in Public Life) Often whistleblowers are persecuted or hushed up and the fear of retribution is high. The price of silence was drastically evident in the case of the merchant ship Derbyshire which sank off the coast of Japan in 1980. The vessel, larger than the Titanic, sank so fast that there was no time to send out a distress signal. An enquiry some ten years later cited poor structure behind the reason for the disaster as it is thought that girders were prematurely stopped as a cost cutting exercise to ease the pressure of construction. It is quite possible that the workmen on site knew of the cutbacks, but failed to speak out at the time. Had they “blown the whistle”, the tragedy and loss of life could have been avoided. Full details of what employes need to consider in a whistleblowing policy are in the full article. The law
Whistleblowing falls under the Public Interest Disclosure Act 1998 (PIDA) which reflects article 10 of the Convention in providing the right to freedom of expression. The PIDA came into force on 2 July 1999 and offers a framework of protection against victimisation or dismissal for workers who blow the whistle on criminal behaviour or other wrongdoing. The Act applies to 'workers' who ordinarily work in Great Britain. This includes not only employees, but also contractors providing services, most agency workers, home workers and trainees on vocational and work experience schemes.
What kind of protection does the Act give?
The legislation does not introduce a general protection for whistleblowers that applies in all circumstances. It applies to workers who follow the procedures laid down in the legislation in disclosing specific categories of malpractice.
These categories are quite wide ranging. A disclosure will qualify for protection if, in the reasonable belief of the individual, it relates to one or more of the following actions:
- a criminal offence
- a failure to comply with a legal obligation
- a miscarriage of justice
- the endangering of an individual's health and safety
- damage to the environment
- deliberate concealment of information relating to any of the above
The behaviour that gives rise to the concern does not necessarily have to take place within the UK.
There are procedures that the whistleblower has to follow and the legislation covers disclosure to the employer, certain regulatory bodies, the Police, media or Members of Parliament. The whistleblower also has to satisfy certain conditions when disclosing information to such third parties. There are also a range of other pre-conditions that the whistleblower must meet, so undertaking any such step shouldn’t be taken lightly.
Employers cannot opt-out of the PIDA provisions. There is no qualifying period for protection for workers making a disclosure and no upper limit of the level of compensation that can be awarded. If a worker makes a protected disclosure and is dismissed as a result, the dismissal is automatically unfair.
The statutory protections clearly cannot offer blanket protection in all circumstances. Case law suggests that employment tribunals will look carefully at whether whistleblowers have satisfied the conditions for claiming protection, including particularly the requirement for disclosures to be made ‘in good faith’. It was recently suggested that this requirement should be abolished.
What are the benefits for an employer of establishing a whistleblowing procedure?
Employees may have a lot at stake when considering whether and how to blow the whistle. Where malpractice is shown to have occurred, this may reflect badly on management systems, or on individual managers. Whistleblowers may fear that management will be tempted to 'shoot the messenger'. A clear procedure for raising issues will help to reduce the risk that serious concerns are mishandled, whether by the employee or by the organisation. But it is also important for workers to understand that there will be no adverse repercussions for raising cases with their employers.
The existence of a procedure, together with evidence that the employer is concerned to deal effectively with any malpractice, will make it less likely that a tribunal will find that an employee was behaving reasonably by making disclosures to an outside body or person. The employer will usually be the best person to investigate and, if necessary, put matters right. An internal procedure will also help to forestall the serious damage to an employer's business or reputation that can occur as a result of public disclosures.
What should a whistleblowing procedure contain?
Employers should make clear to employees what to do if they come across malpractice in the workplace. Being clear on what constitutes unethical behaviour should be communicated on a day to day basis. This should encourage employees to inform someone with the ability to do something about the problem. Guidance will need to reflect the circumstances of individual employers, but should make clear that:
- the kinds of actions targeted by the legislation are unacceptable and the employer attaches importance to identifying and remedying malpractice - hence specific examples of unacceptable behaviour might usefully be included
- employees should inform their line manager immediately if they become aware that any of the specified actions is happening (or has happened, or is likely to happen)
- in more serious cases (eg if the allegation is about the actions of their line manager), the employee should feel able to raise the issue with a more senior manager, bypassing lower levels of management
- whistleblowers can ask for their concerns to be treated in confidence and such wishes will be respected
- employees will not be penalised for informing management about any of the specified actions
It is preferable to deal with whistleblowing separately, rather than as an extension to or part of an existing grievance procedure, while cross referencing procedures on discipline and grievances. Managers too, may need training, to ensure that any policy is adhered to consistently and to minimise the damage to the company. Open and clear communication across and up and down the organisation is vital to create a culture where people feel able to unethical behaviour.
The rates for the national minimum wage increase on 1st October 2006, as follows: - for those aged 22 or over: from £5.05 to £5.35 per hour
- development rate from £4.25 to £4.45 per hour
- for workers aged 16 to 17 years: from £3.00 to £3.30.
HMRC has published a list of some of the more unusual or outlandish reasons given to its enforcement teams by employers who have failed to pay this. These include: "He doesn't deserve it - he's a total waste of space". Others said that they only took someone on as a favour, or that the workers "can't cope on their own - and it's more than they would get in their own country", or - ouch - "He's disabled ". In the last year the enforcement teams have identified nearly £3.3 million in underpaid salaries across the UK.
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